37 S.C. 575 | S.C. | 1892
The opinion of the court was delivered by
This was an action under the Code for “the recovery of real property”—a tract of land described
The proof was very meager. We think it appeared that the plaintiffs bid off the land at sheriff’s sale, January 5, 1880, when it was sold under judgments and executions against Mrs. Lynch, and received sheriff’s title for it; that before the aforesaid sheriff’s sale, Mrs. Lynch, the owner, had leased the land to one Cunningham, who occupied it for seven years, and she had before the sale (June, 1879,) also conveyed it to one W. E. Lynch, who, it seems, sometime after, in 1882 or 1883, conveyed the land to the defendant, A. W. Lynch, whose agent and attorney, Eugene B. Gary, Esq., for some time paid the taxes on the land, and collected some rents. When he commenced to receive rents for the defendant, the attorney did not remember, but it must have been after 1882 or 1883, when the land was conveyed to the defendant. Nor did he remember when he ceased to act as agent of the defendant, but he thought he had received no rents for five or six years, and in the meantime he had been asked to become the agent of another, one Outz. The returns from the auditor’s office were offered in evidence, showing that the lands were returned for taxation by Mr. Gary as the property of the defendant, the last return being dated February 20, 1889.
At the close of the testimony for the plaintiffs, the defendant’s attorney made a motion for a non suit, on the ground that there was no proof to show.that the defendant was in possession of the land at the time the action was brought. The motion was granted by his houor, Judge Wallace, who granted the following order: “At the close of plain tiffs’ testimony, the defendant’s attorney having moved for a non-suit, that there was an entire failure of proof on the part of the plaintiffs as to the possession of the land by the defendant at the time of the commencement
The plaintiffs appeal on the following grounds: I. Because it was error in the presiding judge to hold that it was necessary for the plaintiffs to show actual possession of the land in dispute at the time of the commencement of the action by the defendant, in order for them to recover against him. II. Because his honor erred in not holding that constructive possession of land by a defendant is sufficient to enable the true owner to recover against him. III. Because the judge erred in not holding that all that was necessary for the plaintiffs to do to maintain their action was to show that the defendant had committed a trespass on the land of the plaintiffs at any time within ten years before the commencement of the action. IY. Because it was error in the presiding judge to hold that the evidence of the possession of the defendant was not sufficient to go to the jury. Y. Because his honor erred in not holding that the answer of the defendant, by setting up a general denial, admitted the right of the plaintiffs to sue him in the character in which he was sued, and was an admission of ouster by the defendant, YI. Because his honor erred in not holding that returning the land for taxation and paying taxes upon it, was a sufficient claim of title and right to possession to enable the plaintiffs to maintain action against him. YII. Because it. was error in the judge nob to hold that, under the Code, all that was necessary for the plaintiffs to show was that the defendant claimed some interest in the land adverse to the plaintiffs, aud that returning the land for taxation and paying taxes was sufficient evidence of an adverse claim to go to the jury.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.